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Malaysia: Court Decision on Review of Pardon Petitions

(Jan. 25, 2017) On January 18, 2017, the Malaysian Court of Appeal ruled that the question of whether or not a rejection of a petition for a royal pardon can be appealed should be considered by a higher court. Anwar Ibrahim, a currently imprisoned opposition leader, can now petition the Federal Court to determine if he can continue the challenge of the decision of the Pardon Board, which has denied his request for a pardon.  (Akira Tomlinson, Malaysia Court Rules Opposition Leader Can Challenge Rejection of Royal Pardon, PAPER CHASE (Jan. 18, 2017); V. Anbalagan, Court Says Anwar Can Challenge Pardons Board’s Decision, FREE MALAYSIA TODAY (Jan. 18, 2017).)

Justice Rohana Yusof, who was one of three judges on the bench that heard the case at the Court of Appeal, said that under the Federal Constitution and Malaysian legislation, legal questions posed by the appellant should be considered by the higher court. She stated, “[w]e find the appellants had met the requirement under Section 84 of the Courts of Judicature Act 1964 to refer the questions before the Federal Court.” (Anbalagan, supra; Federal Constitution (as at  Nov. 1, 2010), Attorney General’s Chambers of Malaysia website; Courts of Judicature Act 1964, Act 91 (as at Aug. 1, 2014), LAWS OF MALAYSIA, Attorney General’s Chambers of Malaysia website.) This decision had the effect of setting aside a 2016 High Court decision to turn down requests for judicial review of pardon decisions. (Anbalagan, supra.) 

Judicial System of Malaysia

The Federal Court is the highest judicial body in Malaysia. Directly below that Court is the Court of Appeal. The next level of courts under the Court of Appeal comprises the High Court in Malaya and the High Court in Sabah and Sarawak. (Malaysian Judicial Structure, Office of the Chief Registrar, Federal Court of Malaysia website (last visited Jan. 19, 2017).)

Background of the Case

Ibrahim, who had led a three-party coalition that did well in the 2013 elections, was sentenced in 2014 to five years in prison for the crime of sodomy. Sodomy is penalized as “carnal intercourse against the order of nature” and subject to a sentence upon conviction of up to 20 years of imprisonment and a whipping. (Act 574, Penal Code (as at Jan. 1, 2015), arts. 377a & 377b, LAWS OF MALAYSIA, Attorney General’s Chambers of Malaysia website.) Ibrahim’s request for a pardon was rejected in 2015, and in December 2016 his appeal for acquittal was denied. Unless his conviction is overturned, he will never be eligible to run for political office. (Tomlinson, supra; Kelly Buchanan, Malaysia: Opposition Leader Loses Final Appeal Against Sodomy Conviction, GLOBAL LEGAL MONITOR (Feb. 12, 2015).)

International Reaction to Ibrahim’s Imprisonment

The Office of the High Commissioner for Human Rights of the United Nations (OHCHR) had expressed disappointment with the five-year sentence for a crime that it says “should not exist under international human rights law.” (Press Release, Press Briefing Notes on Libya, Malaysia, Thailand and Venezuela (Feb. 10, 2015), OHCHR website.)

Human Rights Watch has condemned the conviction of Ibrahim as politically motivated. Phil Robertson, the Deputy Director of that organization for Asia, stated “[e]very day that Anwar is behind bars, confidence in the Malaysian justice system further erodes. The government should release Anwar and repeal the country’s abusive and archaic sodomy laws.” (Malaysia: End Anwar Ibrahim Incarceration, Human Rights Watch website (Feb. 8, 2016).)